Unpleasant Surprises Stemming from the No Surprises Act

One facility recently found that failing to get an estimate to a patient in timely fashion created more than a few headaches.

This past January, immediately after the good-faith price estimate requirement for hospitals went into effect, one of my clients received a call from a patient late on a Friday to schedule a procedure for the following Wednesday.

The patient was not using insurance to pay for the service. My client provided the patient with a good-faith estimate (GFE), as the No Surprises Act (NSA) requires when a visit is scheduled at least three business days out and the patient won’t be using insurance – but the GFE was not provided until later on Wednesday, after the procedure was performed. 

The federal government has now launched an investigation of this organization, seeking the production of a wide range of information related to the No Surprises Act. The request is several pages long, and asks for details regarding the training provided to employees, information on every time a patient failed to receive a GFE, as well as a cause analysis of the failure to meet NSA requirements.  Gathering all of the requested information is going to take quite a bit of real effort. 

There are a couple of real lessons to be learned here. First, if you have a good eye for detail, you noticed that I mentioned that the patient called on a Friday to schedule a procedure for the following Wednesday. The relevant regulation, 45 C.F.R. § 149.610, requires the provision of a GFE when a service is scheduled “at least three (3) business days before the date the item or service is scheduled to be furnished.” This raises an interesting question about how you count the days. If someone calls at 5 p.m. on a Friday to schedule a procedure, does Friday count as one of the days? CMS’s answer is a clear “yes.” While I am not yet sure if they are right, from a risk management standpoint, you definitely want to count the day the patient calls as a day, even if they call at 11:59 p.m.

The No Surprises Act is confusing. I know that a number of clinics assume that the law basically does not apply to them. But there are two elements that very much apply. In addition to the requirement to give good-faith estimates to patients who are not using insurance to pay for their care, there is a requirement to provide notices to patients about the No Surprises Act. That provision does not apply to all clinic patients, but it applies when a clinic patient is being taken to an ambulatory surgical center (ASC) or a hospital for care. If your clinic ever takes patients to an ASC for surgery, then make sure that those patients are receiving the NSA-required notices. You will also want to make sure that your website has the right notice, and that somewhere in your organization there is a copy of it posted on the wall. 

During a recent broadcast (Monitor Monday), I mentioned that the Civil Chief in the U.S. Attorney’s Office in Chicago recently spent nearly 10 minutes of a speech talking about pricing-related issues. The bottom line is that price transparency and the No Surprises Act are clearly going to be getting considerable attention from the government.

It is a good time to make sure your organization fully understands what portions of the provisions apply to you, and that you are in compliance with them.

For more information about the No Surprises Act, you may wish to watch the RACmonitor webcast available here.

Programming note: Listen to healthcare attorney David Glaser’s “Risky Business” report every Monday on Monitor Mondays, 10 Eastern.